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Appeals

After you are sentenced, you have a right to appeal your conviction or sentence. You may appeal your case no matter what sentence you receive. Your appeal will be decided by a panel of appellate judges (appeals court) who review the proceedings of the court where you were convicted and sentenced, You have a right to appeal no matter what crime you were convicted of, and regardless of whether you were convicted after trial or by guilty plea. When you plead guilty, however, you give up (waive) your right to appeal some issues. Sometimes, you may be asked to give up your right to appeal as part of the plea bargain. Even in this situation, however, you may be entitled to have the appellate court review some issues.

In cases where the death penalty has been imposed, special appellate rules apply. You should consult an appellate lawyer in such a case. In all other cases, notice of your intent to appeal must be filed within thirty days of the date you were sentenced. The notice must be filed with the clerk of the court and the prosecutor’s office. Your lawyer must file this notice if you ask him or her to do so. If your notice is not filed within thirty days from the date of your sentencing, you must ask the court for permission to appeal by making a motion for an extension of time. Such a motion must be made within one year and thirty days from the date of your sentencing, and you should explain why your notice was not filed within thirty days.

If you want a lawyer to be assigned to your appeal because you do not have money to pay for one, you must ask the court to appoint one to you.

Your appellate lawyer will obtain a copy of the transcripts of your case, as well as other necessary court papers and exhibits, from the court. He will prepare the necessary court papers for the appeal (a brief or a motion) and, if appropriate, he will argue your case orally in the appellate court. Unlike the suppression hearings or the trial, you will not be brought to the appellate court when your appeal is heard. If you have not been sentenced to a prison term, however, you may attend the appellate argument.

If your appeal results in an affirmance, meaning the appellate court found that you received a fair trial and there was enough evidence to prove your guilt a beyond reasonable doubt, or that your guilty plea was properly taken, you have a limited right to seek further appeal to the highest court in New York State, the Court of Appeals.

If the Court of Appeals decides not to review your case, or if that court affirms your conviction, you will have reached the end of the New York State appellate process. Further proceedings, such as applications to appeal to the United States Supreme Court, are beyond the scope of this Handbook. You can ask your appellate lawyer about these proceedings but you do not have the right to a court-appointed lawyer for these proceedings.

If your conviction is reversed, your case may be dismissed, you may receive a new trial or hearing, or in some instances, your guilty plea may be vacated. If your conviction is modified, you may receive a lower sentence, or the offenses of which you were convicted may be reduced, or both. In addition, the appellate court may remit the case to the trial court to conduct a hearing on a specified issue. Once these instructions are followed, the appellate court will hear your appeal.

You may ask to be released from prison while you are waiting for a decision on your appeal. This is called an application for a stay, If your application for a stay is granted, you may be released from jail on bail or on your own recognizance, depending on all of the circumstances. You may not make an application for a stay if you were convicted of a class A felony. Only one application for a stay is permitted during the appeal, although if your appeal continues to the Court of Appeals, you then may make another application for a stay.

In certain circumstances, even though the charges against you have been dismissed, the prosecutor may be permitted to appeal your case. This is called a People’s appeal. If the People’s appeal is successful, the charges against you may be revived and the case against you may continue. The prosecutor is absolutely prohibited from appealing an acquittal.